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War Powers

Your Humble Blogger notes that legislators are finally making a bit of a fuss about this whole War Powers thing. There’s an interesting Interview with Rep. Brad Sherman (D-CA) over at the Foreign Policy blog, and an entertaining note by Jack Goldsmith saying that The Boehner Ultimatum Makes No Legal Sense over at Lawfare.

For those Gentle Readers who don’t pay attention to procedural stuff, or who live in a country set up differently than these United States, here’s the problem in a nutshell: The Constitution gives the power of declaring war to the legislature specifically to prevent the President from haring off on misadventures on his own, but since the era of Declared Wars is over (if it ever really existed, which not so much), we have effectively transferred that power to the President. That is, the President is not allowed to formally declare war, but doesn’t need to formally declare war to engage in it. The Legislature passed a War Powers Resolution forty years ago, over a presidential veto, that in theory prevents the President from engaging in a protracted war that the Legislature does not want. In practice, the Legislature has no means by which to prevent the President from engaging in a war except refusing to fund it, which would unacceptably endanger our servicemen for a political act. So the President can and does ignore the War Powers Resolution, or can comply with it if it seems politically helpful, or can straddle the fence by doing something that isn’t quite complying but isn’t quite not complying, either.

So. Here’s the problem: The Legislature does not want to do anything politically risky. They certainly don’t want to declare war. They don’t, in fact, want to keep to themselves the full responsibility for deciding which wars to fight. They do want to restrain a President from haring off on unpopular wars, but they don’t want to be responsible for restraining a President from haring off on a war that may turn out to be unpopular but may not. The War Powers Resolution is useless for this.

Ten years ago or so, I used to feel quite strongly that we needed to scrap the War Powers Resolution for that reason, and to start again with something else. I was persuaded that doesn’t actually work, because of the other problem: there is no remotely plausible sequence of events where the Supreme Court of the United States takes the command of the armed forces away from the Presidency. That is, if the Legislature felt that the President was in violation of the War Powers Resolution or any other similar statute and took that feeling to the Supreme Court, it would not and probably could not do anything about it. They aren’t going to send our boys home. They aren’t going to put the President in prison. In all probability, they are going to say that it’s a dreadful situation and should not be held as precedent, but the President must continue to command.

So here’s my suggestion: amend the Constitution to explicitly allow the Legislature to remove the President in displeasure for the conduct of foreign wars. I would have the mechanism be essentially the same as impeachment: a majority of the Lower House and two-thirds of the Upper House. It would be clear, however, that no crime needs to have been committed for removal. Evidence would be presented and discussed, certainly, but in essence, the President would be subject to removal simply because the Legislature wants him gone. Incompetence, overreach, adventuring—and even if the Legislature had made a Declaration of War or had otherwise authorized the military engagement in question.

Of course, it would never, ever happen. Politically, it just wouldn’t. But then politically, what are the chances that the President will engage in a protracted and unpopular military adventure and then stay in office long enough for any of this to matter? We have seen the Legislature and the American People accede to the President’s judgment over and over again, even if there are later regrets, or later denials that they played along. The transfer of authority from the Legislature to the President happened in the hearts and minds of the Legislators and the voters first. That’s the reality—the President will decide who we invade and how long we stay. All my solution would do is acknowledge that and prepare for the worst-case scenario.

Tolerabimus quod tolerare debemus,

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